Effective starting: May 18, 2021
This SEAL Metrics Reseller Agreement (the “Agreement”) is entered into by and between Esfera Marketing SL (“SEAL Metrics” or “we”), and the applicable reseller (“Reseller” or “you”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree to this Agreement on behalf of the party that you represent. By placing an Order for SEAL Metrics’s Offerings to resell to a Customer, you indicate your assent to be bound by this Agreement. If you do not agree to the terms of this Agreement, do not place an Order to resell the SEAL Metrics Offerings. Individually, either Reseller or SEAL Metrics may be referred to as a “Party” and, together, SEAL Metrics and Reseller may be referred to as the “Parties”.
Whereas Esfera Marketing SL grants a non-exclusive license authorizing the Reseller to sell subscriptions to SEAL Metrics privacy-first web analytics at sealmetrics.com subject to the following terms and conditions of this Agreement:
1. Provision of License
1.1. End Users
Seal Metrics grants to the Reseller the non-exclusive license to access and use sealmetrics.com for purposes of facilitating and marketing the sale and selling SEAL Metrics subscriptions to end users (“End Users”).
The Reseller is authorized to grant individual sublicenses to End Users of SEAL Metrics, and both the Reseller and the End Users must at all times access and make use of SEAL Metrics in conformity with the general business terms in force at any given time (the “Terms of Service”) which must be specifically agreed to when accessing sealmetrics.com. The Terms of Service will be annexed to this Agreement as Schedule 1.1.
Any license granted by Seal Metrics in this Agreement is non-exclusive, and Seal Metrics is under no obligation to refrain from any direct or indirect sale of SEAL Metrics.
1.2. License Restrictions
The Reseller may not, nor may it permit or assist others to, (i) modify or fraudulently use SEAL Metrics to process or permit processing of the data of any third party not expressly authorized herein to access and use SEAL Metrics; or (ii) access, alter or destroy any information of any Customer of SEAL Metrics by any fraudulent means or device or attempt to do so.
1.4. Reservation of Rights
All rights not expressly granted to the Reseller herein are expressly reserved by Seal Metrics.
SEAL commission model applies for Customers that the Reseller invoices directly without any involvement from Seal Metrics.
For those Customers that the Reseller invoices directly, the Reseller will receive a discount of 40% on the Reseller’s and all the Customers’ subscriptions created under the Reseller’s account at sealmetrics.com.
Once a month Seal Metrics, will invoice the Reseller for all the Reseller’s own subscriptions and Customer subscriptions created and invoiced directly under the Reseller’s account at sealmetrics.com. Subscriptions will be invoiced in arrears in accordance with the always applicable prices for SEAL Metrics less a total discount of 40% as described before.
Under the wholesale model, the Reseller is fully and solely liable for the Customers’ payment and must pay Seal Metrics’s invoices in full regardless of whether the Reseller has received payment from its Customers. The Reseller’s payment obligation comes into force when the Customer uses SEAL Metrics for the first time.
Any fees in relation to the bank transfer from the Reseller’s bank account to Seal Metrics’s Spanish bank account will be at the Reseller’s own expense.
3. Contracting Procedures
For those new Customer subscriptions the Reseller wishes to establish under the wholesale model set out previously, the Reseller is required to create and pay for its own SEAL Metrics subscription at sealmetrics.com.
3.4. End Users
When End Users subscribe to SEAL Metrics, the End Users will specifically agree to the Terms of Service provided at sealmetrics.com.
For End Users managed under the wholesale model, the Reseller is required to grant sublicenses to End Users for SEAL Metrics only in conformity with the Terms of Service provided at sealmetrics.com. Those End Users will not have direct access to log in to SEAL Metrics, and their subscriptions can only be managed and configured by the Reseller.
4. Seal Metrics’s Obligations
4.1. Technical Support
If the Reseller experiences that SEAL Metrics is not in conformity with all of the requirements in this Agreement, the Reseller must notify Seal Metrics without delay by telephone or through Seal Metrics’s help desk at sealmetrics.com. Seal Metrics will use its best efforts to answer questions and correct reported errors that can be reproduced by Seal Metrics (or to provide suitable temporary solutions or workarounds for errors) during the initial response. If the Reseller states that the reported error is substantial and material for the use of SEAL Metrics or that the reported error causes SEAL Metrics to be inoperable, Seal Metrics will use its best efforts to correct the error within a commercially reasonable time after Seal Metrics’s initial response.
The technical support services provided herein will be provided without charge.
All technical support will be provided solely to the Reseller. The Reseller must provide First-Line Technical support to End Users, cf. Section 5.2 below.
4.2. Updating SEAL Metrics
Seal Metrics must provide to the Reseller information about all significant updates of SEAL Metrics’s functionality that Seal Metrics generally releases to other Resellers.
Seal Metrics must not use the name of the Reseller in publicity releases, advertising or similar activity without the prior written consent of the Reseller, which must not be unreasonably withheld or delayed. Notwithstanding the aforementioned, the Reseller allows Seal Metrics to include the Reseller’s name, company profile and contact information in its public reseller lists and to make a routine public announcement of the execution of this Agreement.
5. Reseller’s Obligations
5.1. Observance of National Law
When advertising SEAL Metrics, the Reseller is obligated to observe all relevant requirements in national law. The Reseller must expressly inform all End Users that they bear the sole responsibility for being compliant with EU and national legislation, including but not limited to legislation concerning information and consent requirements in regard to cookies. If the Reseller becomes aware of developments in this regard, including but not limited to changes in national law and/or enforcement, the Reseller must inform Seal Metrics of these developments without undue delay. All actions in this regard are at the Reseller’s own cost.
5.2. First-Line Technical Support
The Reseller bears the sole responsibility for providing First-Line Technical Support to its Customers using SEAL Metrics. The Reseller must instruct all End Users to make all inquiries regarding support directly to the Reseller. First-Line Technical Support is at the Reseller’s own cost as it is included in the administration fee (if the retail model applies) or wholesale discount (if the wholesale model applies).
If the Reseller does not provide First-Line Technical Support in accordance with this Agreement and the Terms of Service, Seal Metrics is entitled to change the End User relation to another reseller, cf. Section 3.3, if Seal Metrics has notified the Reseller of the Reseller’s breach and the Reseller has not remedied this within 3 business days. Further, Seal Metrics is entitled to set off any expenses in this regard in the administration fee (if the retail model applies) or claim such expenses from the Reseller (if the wholesale model applies).
5.3. Data protection
The Reseller may not use, sell, trade or otherwise transfer any Customer data to third parties.
5.4. Branding Requirements
SEAL Metrics will be branded with trade names, service marks, trademarks, logos and indicia of origin and other distinctive branding features (“Seal Metrics Branding Features”). All non-exclusive distribution rights and licenses granted herein for SEAL Metrics are subject to the following branding requirements. All use of Seal Metrics Branding Features must solely be for the benefit of Seal Metrics. The Reseller may not (i) apply for registration of the Seal Metrics Branding Features (or any marks or features confusingly similar thereto) anywhere in the world, (ii) alter, modify or change the Seal Metrics Branding Features in any manner, or (iii) use any of the Seal Metrics Branding Features except as expressly authorized herein or by prior written approval from Seal Metrics.
6. Monitoring of Reseller’s Use
Seal Metrics reserves the right to internally monitor the Reseller’s usage of SEAL Metrics.
7. Minimum Technical Requirements for SEAL Metrics
7.1. Scalability and System Requirements
SEAL Metrics must be scalable in a manner that allows the service to meet any forecasted increase.
Seal Metrics may, at any time during the term of the Agreement, set out and amend such minimum system requirements and/or recommendations that will provide the End User with the optimal functionality of SEAL Metrics.
7.2. Protection of Customer Data
SEAL Metrics must be operated in an environment that protects the security and privacy of Customer data.
7.3. Internet Data Centers
SEAL Metrics will be provided through Internet Data Centers that are configured consistently with reasonable and appropriate safeguards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. Seal Metrics may outsource its Internet Data Center operations to subcontractors.
7.4. sealmetrics.com Operations
Seal Metrics must undertake commercially reasonable efforts to operate and maintain its web servers that provide sufficient access to SEAL Metrics twenty-four (24) hours per day, seven (7) days per week, except when routine maintenance is required. Seal Metrics must monitor such servers and undertake commercially reasonable efforts to restore promptly all failures of service at Seal Metrics’s own expense.
Seal Metrics must implement reasonable and appropriate security procedures consistent with prevailing industry standards in order to protect the Reseller’s End Users’ customer data from unauthorized access by physical and electronic intrusion. Unless Seal Metrics fails to perform the aforementioned obligations, the parties agree that Seal Metrics must not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses or flaws unknown to Seal Metrics at the time. Seal Metrics will promptly report to the Reseller any unauthorized access to customer data upon discovery by Seal Metrics, and Seal Metrics will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such customer data is required, the Reseller bears the sole responsibility for passing on any and all such information at its own expense.
9. Intellectual Property Rights and Copyright
Seal Metrics holds full copyright, title and any and all other intellectual proprietary rights to SEAL Metrics and nothing in this Agreement operates to assign or transfer any intellectual property rights from Seal Metrics to the Reseller, or End Users.
The terms and conditions set out in clause 11 of the Terms of Service also apply in this Agreement.
10. Representations and Warranties; Indemnity
10.1. Representations and Warranties
Each of the parties represents and warrants to the other that (i) each party has full legal right, power and authority to enter into and perform this Agreement; (ii) SEAL Metrics, proprietary rights and any branding features of either party specified herein do not infringe or misappropriate any proprietary right of any third party or constitute defamation, invasion of privacy or violation of the privacy rights of any third party; (iii) all IPR in SEAL Metrics as set out in Section 9, proprietary rights and any branding features of either party specified herein are either owned by the providing party or are properly sublicensed from third parties granting such party the right to use same as contemplated hereunder; (iv) regarding the collection and use of End-User data, each of the parties represents and warrants to the other that neither party will violate any rights of any person or entity, including without limitation, rights of publicity, privacy or personality.
Each party must defend, indemnify and hold harmless the other, its subsidiaries, successors, assigns, executive officers and employees from, for and against any and all claims, costs, damages, losses, liabilities, actions, recoveries, judgments and expenses (including actual attorneys’ fees and expenses regardless of whether litigation was commenced) (a “Claim“) arising out of or in connection with a breach/untruth of any express representation and warranty set out in Section 10.1, provided that: (i) the indemnified party notifies the indemnifying party in writing of the Claim promptly upon the indemnified party becoming aware of such Claim; (ii) the indemnifying party must have exclusive control of the settlement or defense of any action to which the Claim relates; and (iii) the indemnified party cooperates with the indemnifying party in every reasonable way to facilitate such defense or settlement. If, after it has been given notice of such Claim, the indemnifying party does not defend any such Claim, the indemnified party may take any of the above actions and must be fully indemnified by the indemnifying party.
11. Warranty Disclaimers
Except as expressly set forth in Section 10 and to the extent allowed by law, each party on behalf of itself and its suppliers hereby disclaims all warranties, both express and implied, including the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration and data accuracy. Neither party warrants or guarantees that the operation of SEAL Metrics or the performance of their respective online functions and web services will be uninterrupted or error-free. Neither party guarantees that data submitted or held in storage on or through its systems associated with the internet will be secure from unauthorized access. Each party acknowledges that it has not relied on any representation that is not expressly set out herein.
12. Disclaimer of Incidental and Consequential Damages
Except for indemnities and obligations regarding confidential information expressly provided herein, neither party will in any event be liable to the other under any provisions or court precedents, including contract and tort (including negligence and strict product liability) for any indirect, special, incidental or consequential damages, even if the party causing such damages has been advised of the possibility of such damages.
13. Reciprocal Disclosure of Confidential Information
The parties anticipate that each party may disclose confidential information to the other. Accordingly, in this Section, the parties desire to establish the terms governing the use and protection of certain information one party (“Owner“) may disclose to the other party (“Recipient“). For purposes hereof, “Confidential Information” means the terms and conditions in this Agreement, and other information of an Owner, including business models and plans, and technical information and data of the Owner or its Customers or suppliers. The Recipient may use Confidential Information of the Owner only for the purposes of this Agreement and must protect such Confidential Information from disclosure to others. The Recipient may only disclose the Confidential Information if reasonably required to perform the Recipient’s obligations under this Agreement. The restrictions of use and disclosure of the Confidential Information do not apply to information that (i) is in the possession or control of the Recipient at the time of its disclosure; (ii) is or becomes publicly known through no wrongful act of the Recipient; (iii) is received by the Recipient from a third party who is free to disclose the Confidential Information without any obligation towards the Owner; or (iv) is independently developed by the Recipient without reference to the Confidential Information.
14. Injunctive Relief
The parties hereby agree that any breach of any provision of this Agreement regarding confidentiality or protection of proprietary rights, hereunder Seal Metrics’s IPR as set out in Section 9, would constitute irreparable harm, and that the aggrieved party will be entitled to specific performance and/or injunctive relief in addition to other remedies at law.
15. Term of Agreement
15.1. Initial Term
The initial term of this Agreement will commence as of the Effective Date hereof and continues for a period of one (1) year. The initial term hereof will automatically renew for a successive one (1) year term unless one party notifies the other in writing no less than ninety (90) days prior to the expiration of the current term of its intention not to renew. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. The Reseller is free to set its own terms of termination in regard to End Users regardless of the terms of termination of this Agreement.
This Agreement may not be assigned by the Reseller other than as permitted in relation to Second-Line Resellers.
15.3. Automatic Termination
This Agreement will terminate immediately without notice in the case of the Reseller’s insolvency, bankruptcy or similar proceedings by or against the Reseller, any attempted assignment by the Reseller for the benefit of creditors or any appointment or application for such appointment of a receiver for Reseller unless the Reseller promptly informs Seal Metrics of the contrary in writing.
15.4. Termination for Cause
If any breach is not cured within eight (8) days from receipt of a written notice describing the nature of the breach, either party may terminate this Agreement and all rights granted herein. Both parties acknowledge that any uncured failure to pay the other party timely constitutes a material breach of this Agreement.
15.5. Effect of Expiration or Termination
Upon the expiration or termination of this Agreement, the Reseller must immediately cease to sell SEAL Metrics. The expiration or termination of this Agreement will not terminate the rights of existing End Users and Seal Metrics will assume responsibility for delivery of SEAL Metrics to such End Users under the Terms of Service provided on sealmetrics.com. The Reseller has no right to claim compensation for lost goodwill, lost business opportunities or similar compensation as a consequence of the termination, regardless of the reason for termination.
Except for actions to protect proprietary rights and to enforce an arbitrator’s decision hereunder, any dispute arising out of or in connection with this Agreement, including any disputes regarding the existence, validity or termination thereof, must be settled by arbitration administered by the Spanish Arbitration Institution in accordance with the rules of simplified arbitration procedure adopted by the Spanish Arbitration Institution and in force at the time when such proceedings are commenced. The arbitration must take place in Barcelona, Spain, and the language to be used in the arbitral proceedings is Spanish. The arbitrator must apply the laws of Spain to all issues in dispute.
17. Jurisdiction and Venue
The courts of Spain have the exclusive jurisdiction and will be the venue for all legal proceedings that are not arbitrated under this Agreement.
Seal Metrics is free to assign this Agreement or any right or interest under this Agreement to a third party, including but not limited to a company owned or partly owned by Seal Metrics.
The Reseller must not assign this Agreement or any right or interest under this Agreement nor delegate any work or obligation to be performed under this Agreement without Seal Metrics’s prior written consent. Any attempted assignment or delegation in violation of this Section will be void and ineffective. The Reseller is, however, allowed to appoint other resellers to perform sales on behalf of the Reseller.
19. Continuing Obligations
The following obligations will survive the expiration or termination of this Agreement: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein; (ii) any covenant granted in this Agreement for the purpose of determining ownership of or protecting proprietary rights, hereunder Seal Metrics’s IPR, including without limitation, the Confidential Information of either party or any remedy for breach thereof; and (iii) the payment of taxes, duties or any money to Seal Metrics as set out in this Agreement.
20. Independent Contractors
The relationship between the parties is that of an independent contractor, and nothing herein should be construed to create a partnership, joint venture, franchise, employment or agency relationship between the parties. The Reseller has no authority to enter into agreements of any kind on behalf of Seal Metrics and does not have the power or authority to bind or obligate Seal Metrics in any manner to any third party.
21. Force Majeure
Neither party is liable for any damage, delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, internet disruptions, hacker attacks or communications failures.
This Agreement must be construed under the laws of Spain, excluding however the general rules of Spanish law on governing law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and replaces all prior communications, understandings and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions of this Agreement will not be a waiver of such provision or any other provision nor of the right of such party thereafter to enforce any provision in this Agreement.
In witness whereof, the parties have caused this Agreement to be duly executed below.